The Cupertino company has gone as far as asking for a Microsoft witness’s testimony to be discarded on the basis that Xbox exec Lori Wright is not a true third party …
Apple Inc. injected a new level of intrigue in its bitter court fight with Epic Games Inc., suggesting the Fortnite maker was acting as a stalking horse for Microsoft Corp. and withholding evidence.
The iPhone maker made the accusations Wednesday night in a filing asking a judge to make an adverse credibility finding against Lori Wright, an Xbox executive who testified in the trial on behalf of Epic. That would mean the judge could ignore her testimony.
Apple asked for such a ruling earlier, but upped its accusations in the new filing. “A reasonable observer might wonder whether Epic is serving as a stalking horse for Microsoft,” Apple said. “Microsoft shielded itself from meaningful discovery in this litigation by not appearing as a party or sending a corporate representative to testify.”
For anyone unfamiliar with the term, a “stalking horse” refers to a person or company using a third party to test reaction to something.
The suggestion here is that it was Microsoft that wanted to take on Apple over this issue, but it didn’t want to be publicly seen to be doing so until it had a sense of how the law and public opinion would view the matter. Therefore, suggests Apple, it did a deal with Epic Games for the Fortnite developer to be the public face of the dispute. Apple said that Microsoft failed to disclose relevant internal communications about this.
Apple claims Epic used as many witnesses associated with Microsoft at trial as it did its own — five each — including Susan Athey from Stanford University.
Athey, who was presented as an expert witness for Epic, has carried out a significant amount of consulting work for Microsoft, so much so that she declined to view confidential documents submitted by Apple in case it left her open to accusations of using that information to benefit Microsoft.
We noted earlier this month supporting evidence for Apple’s claim.
Microsoft began urging U.S. and European antitrust regulators to examine Apple’s practices and Mac’s market share growing while Windows PCs have stagnated.
Microsoft denies that it is behind the lawsuit, and called the accusation a “distraction.”
Apple is trying to distract from legitimate concerns from many companies across the industry about its App Store policies and practices, including its refusal to allow game streaming in the Apple App Store.
It’s certainly one of the most interesting turns in the case! We now have to await a ruling on the matter.